Facts: Yida and others were charged in an ecstasy conspiracy. 2007 WL 2325143, *1. Co-D Reziniano flipped and was jailed five months before trial on a mat-wit detainer. Id. At trial Reziniano was “thoroughly cross-examined” by AFPD Cohen. Id. Josh hung the first jury and the case was set for retrial. Before retrial, Reziniano asked to be deported to Israel and promised to return to testify. Id. Without informing defense counsel or the court, the government agreed. Id. Reziniano was deported to Israel and then (shocking!) refused to return for retrial because of “illness.” Id. at *2. The government tried to introduce Reziniano’s prior trial testimony at the retrial, under the “unavailable witness” exception to the hearsay bar. Id. (relying on FRE 804(a)(4), (5)). District Judge Breyer refused, holding FRE 804 “unavailability” meant that the government must act “reasonably” in retaining the availability of a witness, not simply in seeking his return. Id. Here, Breyer explained, the government did not act reasonably when it allowed Reziniano to be deported. Id. The government took an expedited appeal. Id. at *3.

Issue(s): “This appeal turns on whether Reziniano is ‘unavailable as a witness’ such that his former testimony is admissible at Yida’s retrial [under FRE 804(a)(4) or (a)(5)].” Id. at *3. “This appeal turns on the meaning of ‘reasonable means’ and the relevant time-frame for assessing the [FRE 804] proponent’s conduct.” Id. at *5.

Held:“[I]mplicit in the duty to use reasonable means to procure the presence of an absent witness is the duty to use reasonable means to prevent witnesses from becoming absent.” Id. at *8 (internal citations and quotation omitted). To be sure, the appropriate time-frame for assessing the government’s actions will vary, according to the specific facts presented. Here, it is clear that the appropriate time-frame should not be limited to the government’s efforts to procure Reziniano’s testimony after it let him be deported, but should instead include an assessment of the government’s affirmative conduct which allowed Rezinano to be deported to Israel in the first instance . . . .” Id. at *8.”

“We agree with the district court and conclude that the government’s decision to deport Reziniano without informing either the court or Yida’s counsel, without taking a video deposition, and without having any means of compelling his return, was not reasonable, particularly when contrasted with the alternatives available to the government.” Id. at *12.

Of Note:Yida should be heavily mined by defense bar for excellent language on the importance of live testimony (drawn heavily from NACDL/Professor Friedman’s amicus contributions, as noted in the opinion). Id. at *3-*4. Even better, turn to Judge Gould’s concurrence emphasizing the constitutional dimension of the concept of “unavailability” and Sixth Amendment ramifications of FRE 804 evidence. Id. at *14-*15.

How to Use:Anyone dealing with material witnesses should read Yida carefully – the opinion is a primer for how to deal with this testimony before a mat-wit is allowed to leave the United States. Id. at *10-*12. Moreover, the opinion covers “unavailability” due to medical necessity. Id. at *13.

Finally, here’s a great quote: “Prosecutors must not only act in good faith but also operate in a competent manner; a prosecutor cannot claim that a witness is unavailable because a prosecutor has acted in an ‘empty-head pure-heart’ way.” Id. at *4. Describe any AUSA you know?

For Further Reading: Yida’s a fitting occasion to mark the departure of AFPD Josh Cohen (right) to private practice at Quinn Emanuel. A Williams College and Yale Law grad, Josh was a district court clerk and practiced at Williams & Connolly in D.C. He’s been a valued colleague and a great friend at the ND Cal FPD since 2003 – the Yida hung jury and Ninth Circuit victory are testaments to his skill as an attorney and to his commitment to indigent defense. (He is also the nattiest AFPD west of the Mississippi). Josh will be sorely missed: we wish him luck in private practice and look forward to future cases with him as CJA-appointed counsel.